Pardon me for loading down the already-bulging submission inbasket
with two separate messages, but I've been thinking and listening.
Here's a few points that I think may be helpful, including one
or two suggestions I've not seen made elsewhere.
There's lots of room for debate as to whether or not software patents
are good or not, and as to the policies of the US issuing organization.
The W3C need not and should not take a policy pro or con on these
issues. The W3C also cannot ignore the existence of these problems.
Conclusion 1
The consideration of patent and IPR-related issues at W3C is
commendable and necessary and needs to proceed at high priority.
The wonderful growth and flourishing of the Web has been based largely
on innovation that has branched off in entirely unpredictable
directions based on people making free use of the generality,
flexibility, and scalability of the protocols invented with the Web
and cultivated by the W3C.
Should it become impossible to make use of certain portions of Web
infrastructure without paying for the rights to uses particular pieces
of intellectual property, those portions can no longer be expected to
achieve the Web's full potential via the kind of growth and flourishing
that have been extremely kind both to the human users of the Web and
to the enterprises that comprise the W3C membership.
Conclusion 2
As a matter of policy, the W3C should restrict the scope of its
Recommendations to areas where developers can proceed implementing
without having to pay for rights to use intellectual property.
Due to the large and poorly-understood technical content of the
universe of patents, both those held by W3C members and non-members,
the restriction of scope aimed at by Conclusion 2 is not easily
achieved in practice.
Based on my experience in the W3C process, it seems that the notion
of "contributorship" to a Recommendation based on WG membership (or
not) is flawed - in practice, participation in a WG is a matter of
degree, not a binary condition.
Conclusion 3:
To aid in achieving RF status for Recommendations, the W3C should be
diligent in advertising the technical content of the projects on
which it's working [I believe the current process covers this
satisfactorily] and actively solicit its membership and the broader
community for information about IPR that may apply, and for a
determination of whether the IPR's holder is willing to grant RF
rights to an extent sufficient to allow cost-free implementation of
the eventual Recommendation.
Conclusion 4:
If IPR issues come to light and the IPR holder is not prepared to
grant RF rights, W3C WGs should make efforts to the technical content
of their work to avoid infringing on those IP Rights in their
eventual Recommendation.
Conclusion 5:
If it is neither possible to obtain RF implementation rights nor
to work around the IPR issues, the W3C should make a determination
that the area of work in question is not suitable for inclusion in
the part of the Web infrastructure that the W3C is charged with
building and enhancing, and cease the work in question.
Conclusion 6:
If IPR issues come to light after a Recommendation has been
published, the W3C should attempt to obtain RF implementation rights.
Failing that, the W3C has two obvious tactical choices:
A. Deprecate the Recommendation in question and remove the W3C
imprimatur. The negative publicity associated with this may
be helpful in negotiating RF implementation rights.
B. [This idea was suggested by another colleague who is reluctant
to speak up here] Apply commercial pressure to the holder of the
IPR in question based on the W3C's own extensive IP portfolio,
comprising trademarks and copyrights. The W3C owns trademark on
"HTML", "XML", and many other widely recognized terms; it may be
viable to withhold the right to use these trademarks from those
who attempt to generate revenue from royalty charges arising from
implementations of W3C Recommendations.
I hope that this is helpful, and my sincerest sympathy goes out to
those who must read through this high volume of input on this issue.
I can only console them by reassuring them that the work is indeed
important.
Cheers, Tim Bray